5 - Article 101(1) TFEU

Summary

This chapter is dedicated to Article 101(1) TFEU balancing tools. It examines tools aimed at balancing competition with state or public interests, such as the state action defence, notion of undertakings, Article 106(2) TFEU exception for services of general economic interests, the exception for collective bargaining agreements between employers and employees, and the inherent restriction doctrine. The chapter also studies tools for balancing competition and commercial interests, such as the rule of reason, objectively necessary agreements, ancillary restraints, and the de minimis doctrine. The chapter shows that unlike most of the explicit-substantive balancing tools that are based on EU primary or secondary law and which were largely developed by the Commission, the wording of Article 101(1) TFEU does not explicitly refer to a balancing function. Rather, the balancing tools of Article 101(1) TFEU are predominantly derived from the CJEU’s case law. It reveals that the CJEU introduced those tools to counterbalance the Commission’s broad interpretation of what constitutes a restriction of competition falling within the ambit of Article 101(1) TFEU. The Court has held that agreements restricting the commercial freedom of parties might escape the prohibition of Article 101(1) TFEU if they are necessary for attaining social or efficiency-related goals.